Citation Nr: 0635900
Decision Date: 11/20/06 Archive Date: 11/28/06
DOCKET NO. 03-24 042 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUES
Entitlement to a higher initial rating for service-connected
hearing loss, currently evaluated as noncompensable.
Entitlement to separate evaluations for service-connected
bilateral tinnitus, currently evaluated as 10 percent
disabling.
Entitlement to service connection for a left foot condition.
Entitlement to service connection for a left leg (knee)
condition, as secondary to a left foot condition.
Entitlement to service connection for a left ankle condition,
to include as secondary to a left foot condition.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Mark Vichich, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1977 to
August 1980.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions dated in January
2003, April 2004, and December 2004 of the Department of
Veterans Affairs (VA) Regional Office (RO) in Indianapolis,
Indiana.
The issues of entitlement to service connection for a left
foot condition and entitlement to service connection for a
left leg (knee) condition, as secondary to a left foot
condition, are addressed in the REMAND portion of the
decision below and are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The veteran has been notified of the evidence necessary
to substantiate her claim, and all relevant evidence
necessary for an equitable disposition of this appeal has
been obtained.
2. The veteran's bilateral sensorineural hearing loss is
manifested by no more than auditory acuity level I in the
right ear and auditory acuity level VI in the left ear.
3. The veteran's service-connected (bilateral) tinnitus is
assigned a 10 percent rating, the maximum rating authorized
under Diagnostic Code 6260.
4. The competent medical evidence does not show that the
veteran's left ankle condition was caused by a left foot
disorder or an in-service injury; instead, the competent
medical evidence shows that the left ankle condition was
incurred after service.
CONCLUSIONS OF LAW
1. The criteria for the assignment of a compensable rating
for bilateral hearing loss have not been met or approximated.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§§ 4.1, 4.85, 4.86, Diagnostic Code 6100 (2006).
2. There is no legal basis for the assignment of a schedular
evaluation in excess of 10 percent for bilateral tinnitus.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic
Code 6260 (2006); Smith v. Nicholson, 451 F.3d 1344 (Fed.
Cir. 2006).
3. A left ankle condition was not incurred or aggravated
during active service; nor is it proximately due to or the
result of a left foot condition. 38 U.S.C.A. §§ 1131, 5103,
5103A (West 2002 & Supp. 2005); 38 C.F.R §§ 3.159, 3.303,
3.310 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (2000) (VCAA) redefines the obligations
of VA with respect to the duty to assist and includes an
enhanced duty to notify a claimant as to the information and
medical or lay evidence necessary to substantiate a claim for
VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp.
2005); 38 C.F.R. § 3.159 (2006). VA is required to provide
the claimant with notice of what information or evidence is
to be provided by the Secretary and what information or
evidence is to be provided by the claimant with respect to
the information and evidence necessary to substantiate the
claims for VA benefits. Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002). VA is also required to request that the
claimant provide any evidence in the claimant's possession
that pertains to the claims. 38 C.F.R. § 3.159(b) (2006).
VCAA notice must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004)
(Pelegrini II).
The Board finds that any deficiencies in VA's duty to notify
resulted in no prejudice and that it has no further duty. In
correspondence dated in November 2002, the RO advised the
veteran of what the evidence must show to establish
entitlement to service-connected compensation benefits for
her bilateral hearing loss, tinnitus, left foot condition,
and leg condition claimed as secondary to her left foot
condition. The RO advised the veteran of VA's duties under
the VCAA and the delegation of responsibility between VA and
the veteran in procuring the evidence relevant to the claims,
including which portion of the information and evidence
necessary to substantiate the claims was to be provided by
the veteran and which portion VA would attempt to obtain on
behalf of the veteran. Quartuccio, 16 Vet. App. at 187.
The Board acknowledges that the notice contained no specific
request for the veteran to provide any evidence in the
veteran's possession that pertained to the claims or
something to the effect that the veteran give VA everything
she had that pertained to her claims. 38 C.F.R. §
3.159(b)(1) (2006). A complying notice, however, need not
necessarily use the exact language of the regulation so long
as that notice properly conveys to a claimant the essence of
the regulation.
The RO requested from the veteran names and addresses of all
healthcare providers who may possess records pertaining to
treatment for the claimed disabilities. The RO also asked
for dates and locations of treatment in the military or at a
VA medical facility. A generalized request for any other
evidence pertaining to the claims would have been superfluous
and unlikely to lead to the submission of additional
pertinent evidence. Therefore, it can be concluded, based on
the particular facts and circumstances of the case that the
omission of the request for "any evidence in the claimant's
possession that pertains to the claim" in the November 2002
notice did not harm the veteran, and it would be legally
proper to render a decision despite this omission.
At the veteran's hearing before a Hearing Officer at the RO
in February 2004, she raised a claim of service connection
for a left ankle disability, as secondary to the foot
disorder. In response, the RO issued correspondence, dated
in April 2004, advising the veteran of what the evidence must
show to establish entitlement to service-connected
compensation benefits for "residuals of a left foot
injury." The RO advised the veteran as to what was
necessary to establish service connection for the claimed
disability. The RO also explained the delegation of
responsibility between VA and the veteran in procuring the
evidence relevant to the claim. The RO also asked the
veteran to send enough information about pertinent records so
that the RO could obtain them on her behalf.
In response to the veteran's notice of disagreement with the
April 2004 rating decision, in which the RO assigned non-
compensable ratings for hearing loss and bilateral tinnitus,
the RO issued a VCAA notification letter, dated in February
2005. In that letter, the RO advised the veteran of what the
evidence must show to receive an increased rating for her
service-connected hearing loss and bilateral tinnitus.
Regarding the bilateral tinnitus claim, the Board notes that
no VCAA notice is necessary. For reasons explained more
fully below, there is no legal basis for the bilateral
tinnitus claim. The provisions of the VCAA have no effect on
an appeal where the law, and not the underlying facts or
development of the facts are dispositive in a matter.
Manning v. Principi, 16 Vet. App. 534, 542-543 (2002).
During the course of this appeal, the Court of Appeals for
Veterans Claims (Court) held that VCAA notice requirements of
38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005) and 38 C.F.R.
§ 3.159(b) (2006) apply to all five elements of a "service
connection" claim. Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). These five elements include (1) veteran
status; (2) existence of a disability; (3) a connection
between the veteran's service and the disability; (4) degree
of disability; and (5) effective date of the disability. Id.
Thus, upon receipt of an application for a service connection
claim, section 5103(a) and § 3.159(b) require VA to review
the information and the evidence presented with the claim and
to provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Id. This includes notice that a disability rating and an
effective date for the award of benefits will be assigned if
service connection is awarded. Id.
In correspondence dated in March 2006, the RO informed the
veteran that when service connection is granted, a disability
rating and effective date of the award is assigned. The RO
also explained how the disability rating and effective date
is to be determined. The Board finds that the RO fulfilled
the requirements of Dingess/Hartman.
In correspondence dated in April 2006, the RO again provided
notice to the veteran of what was necessary to establish
entitlement to service-connected compensation benefits. In
this letter, the RO explained what the evidence must show to
establish entitlement to service connection, an increased
evaluation for service-connected disabilities, and service
connection for a disability claimed as secondary to a
service-connected disability. Additionally, throughout the
course of the appeal, the RO provided the veteran with copies
of all rating decisions currently on appeal. The RO also
provided the veteran with copies of Statements of the Case
(SOCs) dated in July 2003, December 2004, and July 2005; and
Supplemental Statements of the Case (SSOCs) dated in April
2004, January 2005, July 2005, and March 2006. Collectively,
these documents included all VA regulations applicable to the
veteran's claims.
The Board recognizes that the veteran may not have received
fully satisfactory notice under the VCAA prior to each rating
decision on appeal as required by Pelegrini II. To the
extent that a Pelegrini II violation exists, the Board finds
that such a violation has resulted in no prejudice.
Particularly, the veteran was not advised of the degree of
disability and effective date elements, or the requirements
for establishing service connection on a secondary basis,
until after the initial rating decisions. These issues were
addressed in the March 2006 and April 2006 correspondence and
the veteran was given 60 days to respond; to date no response
has been received. Moreover, throughout the course of the
appeal, the veteran has responded to VCAA notification
letters and demonstrated that she had knowledge of the
applicable legal criteria. For example, she described how
her claimed knee and ankle disabilities were related to her
foot disability, and she described the severity of her
hearing loss. Remanding for further development would not
likely lead to the admission of additional pertinent evidence
and would serve no purpose.
In regard to VA's duty to assist, the Board notes that the RO
obtained the veteran's service medical records, relevant
personnel records, and VAMC treatment records. The RO
provided the veteran with two hearings ad two VA audiological
examinations. The RO also obtained a VA medical nexus
opinion for the left foot condition service connection claim.
The veteran has not made the RO or the Board aware of any
other evidence relevant to her appeal and no further
development is required to comply with the duty to assist the
veteran in developing the facts pertinent to her claim.
Accordingly, the Board will proceed with appellate review.
II. A Higher Initial Rating for Bilateral Tinnitus
Legal Criteria
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities, which is
based on the average impairment of earning capacity. 38
U.S.C.A. § 1155 (West 2002 & Supp. 2005); 38 C.F.R. § 4.1
(2006). When the initial evaluation is at issue, the Board
must assess the entire period since the original claim was
filed to ensure that consideration is given to the
possibility of staged ratings; that is, separate ratings for
separate periods since the date the original claim was filed.
See Fenderson v. West, 12 Vet. App. 119 (1999). Individual
disabilities are assigned separate diagnostic codes. If two
evaluations are potentially applicable, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that rating; otherwise
the lower evaluation will be assigned. 38 C.F.R. § 4.7
(2006). All benefit of the doubt will be resolved in the
veteran's favor. 38 C.F.R. § 4.3 (2006).
Analysis
The veteran requested an increased evaluation for tinnitus,
specifically a 10 percent evaluation for each ear. The RO
denied the veteran's request because under Diagnostic Code
(DC) 6260 there is no provision for assignment of a separate
10 percent evaluation for tinnitus of each ear. The veteran
appealed that decision to the Board.
In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the Court
held that the pre-1999 and pre-June 13, 2003 versions of DC
6260 required the assignment of dual ratings for bilateral
tinnitus. VA appealed this decision to the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) and stayed
the adjudication of tinnitus rating cases affected by the
Smith decision. In Smith v. Nicholson, 451 F.3d 1344 (Fed.
Cir. 2006), the Federal Circuit concluded that the CAVC erred
in not deferring to the VA's interpretation of its own
regulations, 38 C.F.R. section 4.25(b) and Diagnostic Code
6260, which limits a veteran to a single disability rating
for tinnitus, regardless of whether the tinnitus is
unilateral or bilateral. Subsequently, the stay of
adjudication of tinnitus rating cases was lifted.
The veteran's service-connected tinnitus has been assigned
the maximum schedular rating available for tinnitus. 38
C.F.R. § 4.87, Diagnostic Code 6260 (2006). As there is no
legal basis upon which to award separate schedular
evaluations for tinnitus in each ear, the veteran's appeal
must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994).
As explained above, the provisions of the VCAA have no effect
on an appeal where the law, and not the underlying facts or
development of the facts are dispositive in a matter.
Manning, 16 Vet. App. at 542-543.
III. A Higher Initial Rating for Hearing Loss
In the April 2004 rating decision, the RO granted service
connection for hearing loss and assigned a noncompensable
rating effective October 2002, the date the veteran
originally filed the claim. The issue before the Board is
the initial assignment of a noncompensable rating for
bilateral sensorineural hearing loss; the veteran contends
that a higher rating is warranted.
Evaluations of bilateral defective hearing range from
noncompensable to 100 percent and are based on organic
impairment of hearing acuity as measured by the results of
controlled speech discrimination tests, together with the
average hearing threshold level as measured by pure tone
audiometry tests in the frequencies of 1,000, 2,000, 3,000,
and 4,000 Hertz. To evaluate the degree of disability from
service-connected hearing loss, the Rating Schedule
establishes eleven auditory acuity levels, ranging from
numeric level I for essentially normal acuity to numeric
level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.86
(2006). Under 38 C.F.R.
§ 4.86, for exceptional patterns of hearing impairment, when
puretone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz is
55 decibels or more, or when the puretone threshold is 30
decibels or less at 1,000 Hertz, and 70 decibels or more at
2,000 Hertz, the rating specialist will determine the Roman
numeral designation for hearing impairment from either Table
VI or Table VIa, whichever results in the higher numeral.
Id.
The Court has noted that disability ratings for hearing
impairment are derived by the mechanical application of the
rating schedule to the numeric designations assigned after
audiometric evaluations are rendered. Lendenmann v.
Principi, 3 Vet. App. 345 (1992). An examination for hearing
impairment for VA purposes must be conducted by a state-
licensed audiologist and must include a controlled speech
discrimination test (Maryland CNC) and a puretone audiometry
test. 38 C.F.R.§ 4.85(a) (2006).
The record shows that the veteran underwent two separate VA
examinations for hearing loss. In March 2004, an audiometric
evaluation revealed the following pure tone thresholds, in
decibels, at 1,000, 2,000, 3,000, and 4,000 Hertz: 25, 10,
25, and 30, for an average of 23 in the right ear; and 80,
65, 70, and 70, for an average of 71 in the left ear. Speech
recognition (per Maryland CNC) was 96 percent in the right
ear and 88 percent in the left ear. The summary of the
audiological test results reflected mild high frequency
sensorineural hearing loss in the right ear and severe mixed
hearing loss in the left ear.
The VA audiometric findings of March 2004 reflect level I
auditory acuity in the right ear and level III auditory
acuity in the left ear under Table VI. See 38 C.F.R.
§ 4.85, Tables VI (2006). These numeric designations in
combination correspond to a zero percent, or noncompensable,
rating. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code
6100 (2006). Because each of the threshold levels in the
veteran's right ear are greater than 55, the values derived
under Table VIa are to be considered. See 38 C.F.R. 4.86(a)
(2006). Under Table VIa, the auditory acuity level in the
veteran's left ear is VI. Using this numeric designation in
combination with that assigned to the veteran's right ear
still corresponds to a zero percent, or noncompensable,
rating. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code
6100 (2006).
A VA audiometric evaluation conducted in October 2005
revealed the following pure tone thresholds, in decibels, at
1,000, 2,000, 3,000, and 4,000 Hertz: 35, 35, 40, 40, for an
average of 38 in the right ear; and 75, 65, 70, and 75, for
an average of 71 in the left ear. Speech recognition (per
Maryland CNC) was 100 percent in the both ears.
The summary of the audiological test results reflected mild
sensorineural hearing loss in the right ear and moderately
severe to severe mixed hearing loss in the left ear.
The VA audiometric findings of the October 2005 examination
reflect level I auditory acuity in the right ear and level II
auditory acuity in the left ear under Table VI. See 38
C.F.R. § 4.85, Table VI (2006). These numeric designations
in combination correspond to a zero percent, or
noncompensable, rating. See 38 C.F.R. § 4.85, Table VII,
Diagnostic Code 6100 (2006). Employing table VIa produces a
higher auditory acuity level for the veteran's left ear, but
ultimately yields the same results. Under Table VIa, which
again, is to be considered because each of the threshold
levels in the veteran's left ear are greater than 55, the
auditory acuity level is VI. This numeric designation, in
combination with that assigned to his right ear, corresponds
to a zero percent, or noncompensable, rating. See 38 C.F.R.
§ 4.85, Table VII, Diagnostic Code 6100 (2006).
Neither the clinical findings of the March 2004 examination
nor the findings of the October 2005 examination demonstrate
that the veteran meets the criteria for a compensable rating
under Diagnostic Code 6100. In short, her bilateral hearing
loss is manifested by no more than auditory acuity level I in
the right ear and auditory acuity level VI in the left ear.
The Board is cognizant of the veteran's contentions
concerning her hearing difficulty but the objective clinical
evidence of record does not support a compensable evaluation
for her bilateral sensorineural hearing loss at this time.
The assignment of disability ratings for hearing impairment
is derived by a mechanical application of the rating schedule
to the numeric designations assigned after audiometric
evaluations are rendered. See Lendenmann v. Principi, 3 Vet.
App. 345, 349 (1992). The requirements of 38 C.F.R. § 4.85
set out the numeric levels of impairment required for each
disability rating, and those requirements are mandatory. The
Board must accordingly find that the preponderance of the
evidence is against the veteran's claim for a compensable
rating for her right ear hearing loss disability.
Lastly, the Board notes that there is no evidence of record
that the veteran's service-connected hearing loss causes
marked interference with employment (i.e., beyond that
already contemplated in the assigned evaluation), or
necessitated any frequent period of hospitalization, such
that application of the regular schedular standards is
rendered impracticable. The Board emphasizes that the
percentage ratings assigned by the VA Schedule for Rating
Disabilities represent the average impairment in earning
capacity resulting from a service-connected disability. 38
C.F.R. § 4.1 (2006). In the instant case, to the extent that
the veteran's service-connected hearing loss interferes with
her employability, the currently assigned rating adequately
contemplates such interference, and there is no evidentiary
basis in the record for a higher rating on an extraschedular
basis. Hence, the Board is not required to remand this
matter to the RO for the procedural actions outlined in 38
C.F.R. § 3.321(b)(1) (2006) for assignment of an
extraschedular evaluation. Bagwell v. Brown, 9 Vet. App.
337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96
(1996).
IV. Service Connection for an Ankle Condition
Evidence
In a chronological record of medical care, dated in July
1979, it was reported that the veteran presented to the
clinic with pain and swelling in the left foot after
reportedly dropping a tire on it. In a radiology consult of
the same date, it was noted that x-rays of the left foot were
negative for abnormal findings. The examiner's assessment
was a bruised foot.
In an outpatient clinic note from VAMC Fort Wayne, dated in
March 2003, J.G., Registered Nurse (R.N.), stated that the
veteran had recently slipped on ice and hit her head and hip.
In a podiatry treatment note from VAMC Northern Indiana,
dated in June 2003 Dr. D.B. stated that the veteran presented
with left foot pain. Dr. D.B. determined that the veteran
had tibialias posterior tendonitis, plantar fasciitis, and
pes cavus.
In a report of a radiology examination from Marion General
Hospital, dated in August 2003, Dr. R.Q. noted that the
veteran presented with swelling in the ankle after an injury
in March 2003. Dr. R.Q. stated that a magnetic resonance
imaging (MRI) showed a possible rupture of the anterior and
posterior talofibular ligament. A partial rupture of the
interosseous talocalcaneal ligament could not be excluded.
Dr. R.Q. found no evidence of acute fractures, dislocations,
or areas of bone contusion.
In a podiatry treatment note from VAMC Fort Wayne, dated in
August 2003, Dr. D.B. referred to the August 2003 radiology
report. Dr. D.B. noted that the MRI showed ruptures of the
left ankle anterior and posterior talofibular ligaments, and
partial rupture of the left interosseous talocalcaneal
ligament.
Treatment records from Dr. J.H., dated in September 2003
through January 2004, showed that Dr. J.H. performed ligament
repair surgery to the veteran's left ankle in December 2003.
In a treatment report, dated in September 2003, Dr. J.H.
noted that the veteran presented with ankle swelling and pain
after reportedly falling while on the job in March 2003. Dr.
J.H. stated that the veteran did not notice the symptoms in
the left ankle until several weeks after the accident. Dr.
J.H. noted that veteran had seen physicians at the VAMC for
the problem. In a treatment note, dated in December 2003,
Dr. J.H. stated that the stretching of the anterior
talofibular ligament was usually due to recurrent mild
sprains or to a severe traumatic sprain. Dr. J.H. said that
this was usually due to recurrent mild median traumatic
sprains, that is, inversion injury to the ankle, especially
with the foot in plantar flexion.
In a podiatry treatment note, dated in January 2004, Dr. D.B.
stated that she agreed that the usual cause of stretching the
anterior talofibular ligament was inversion injury of the
ankle.
A transcript of a hearing before a Hearing Officer at the
Indianapolis, Indiana RO, in February 2004, showed that the
veteran testified that she began receiving treatment for her
left foot at VAMC two years earlier. The veteran testified
that she injured her left foot in service after a truck tire
fell on it. The veteran testified, however, that her
symptoms of tenderness and sensitivity in the left foot had
existed since discharge.
In an orthopedic consult from VAMC Indianapolis, Indiana,
dated in July 2004, M.W., Physician's Assistant (P.A.),
stated that the veteran began having swelling and pain in the
left ankle in March 2003.
In a VA medical opinion, dated in September 2004, Dr. K.M.
stated that the claims file had been reviewed. Dr. K.M.
noted the veteran's history of a foot injury as reflected in
service medical records. Dr. K.M also noted the veteran's
recent treatment at VAMC and from Dr. J.H., the veteran's
private orthopedic surgeon. Dr. K.M specifically noted the
diagnoses of tendinitis, plantar fasciitis, and ruptured
ligaments.
Dr. K.M. stated that the medical evidence showed the veteran
to currently have ligamentous instability of the lateral
aspect of the left ankle status post imbrication of
calcaneofibular ligament and imbrication/repair of anterior
tibiofibular ligament. Dr. K.M. stated that the current
condition was the result of an injury the veteran sustained
to the left ankle after falling on ice while on the job in
March 2003. Dr. K.M. stated that dropping the truck tire on
her foot in July 1979 did not cause injury to the left ankle.
At a hearing at the VA RO in Indianapolis, Indiana, dated in
February 2006, the veteran testified that she felt that she
did not receive the appropriate treatment at the time of her
in-service injury. Because of this treatment, the veteran
contended that her ankle had weakened. The veteran felt the
injury incurred in the slip and fall in March 2003 was
because her ankle was weak. Regarding the treatment in
service, the veteran testified that she was taken off of
driving duty for 30 days and told to elevate the foot for one
hour every day.
The veteran testified that after her discharge from service,
her foot stopped swelling until sometime prior to March 2003.
The veteran testified that she did not drive trucks with
manual transmissions for a long time and that when she
started driving them again, the pain in her foot returned.
The veteran stated that several weeks after the March 2003
accident she began to experience more swelling.
Legal Criteria
Service connection will be granted if it is shown that a
veteran has a disability resulting from an injury or disease
contracted in the line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in active
military service. 38 U.S.C.A. § 1131 (West 2002 & Supp.
2005); 38 C.F.R. § 3.303 (2006). Service connection may also
be granted for any disease diagnosed after discharge, when
all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (2006). "Generally, to prove service
connection, a claimant must submit (1) medical evidence of a
current disability, (2) medical evidence, or in certain
circumstances lay testimony, of in-service incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus between the current disability and the in-service
disease or injury." Pond v. West, 12 Vet. App. 341, 346
(1999). Where the determinative issue involves a medical
diagnosis, competent medical evidence is required. This
burden typically cannot be met by lay testimony because lay
persons are not competent to offer medical opinions.
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).
Service connection may also be established on a secondary
basis for a disability that is proximately due to or the
result of a service-connected disease or injury. 38 C.F.R. §
3.310(a) (2006). Establishing service-connection on a
secondary basis requires evidence sufficient to show (1) that
a current disability exists and (2) that the current
disability was either (a) caused by or (b) aggravated by a
service-connected disability. See 38 C.F.R. § 3.310(a)
(2006); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995)
(en banc) (providing that secondary service connection may
also be granted for the degree of aggravation to a
nonservice-connected disorder which is proximately due to or
the result of a service-connected disorder) reconciling
Leopoldo v. Brown, 4 Vet. App. 216 (1993) and Tobin v.
Derwinski, 2 Vet. App. 34 (1991).
Analysis
The veteran is claiming that she currently suffers from an
ankle condition caused by a foot disability incurred in
service. The Board has considered all evidence of record and
determines that there is no basis upon which to grant service
connection for an ankle condition.
The evidence shows that the veteran currently suffers from
torn ligaments in the left ankle, plantar fasciitis, and
tendinitis, but no medical evidence links these conditions to
an event in service. First, it is the opinion of the medical
providers that the current ankle instability is related to
the March 2003 injury and not the foot injury in service.
Particularly probative is the opinion of Dr. K.M., who
reviewed all of the medical evidence prior to rendering an
opinion. Dr. K.M.. also specifically referred to all of the
aforementioned diagnosed conditions, yet declined to link any
of them to an incident in service. The Board also finds the
opinions of Dr. J.H. and Dr. D.B. to weigh against a finding
of service connection. Both of those doctors determined that
the veteran's ankle disorder was likely caused by inversion
injury to the left ankle. Slipping and falling on ice is
consistent with this explanation.
Second, there was a substantial lag between the in-service
injury and subsequent medical treatment. The record shows
that the first treatment for a left foot or ankle disorder
was more than 20 years after discharge. Considering that the
veteran apparently had no problems with her foot or ankle for
many years after the in-service incident, and that the
medical evidence otherwise fails to link a current condition
to the in-service incident, the Board finds service
connection is not warranted for an ankle disorder.
In conclusion, the medical evidence fails to link a current
ankle disability to either an incident in service, or to any
residuals of such an injury. Thus, service connection is not
warranted on a direct or secondary basis. In reaching this
conclusion, the Board notes that under the provisions of 38
U.S.C.A. § 5107(b), the benefit of the doubt is to be
resolved in the claimant's favor in cases where there is an
approximate balance of positive and negative evidence in
regard to a material issue. The preponderance of the
evidence, however, is against the veteran's claims;
therefore, that doctrine is not for application in this case.
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
ORDER
Entitlement to a compensable rating for service-connected
hearing loss is denied.
A schedular evaluation in excess of 10 percent for tinnitus
is denied.
Entitlement to service connection for a left ankle condition,
to include as secondary to a left foot condition, is denied.
REMAND
The veteran contends that she currently suffers from chronic
residuals of a foot injury incurred in service. The veteran
also contends that she has left knee pain as a result of
chronic residuals of the claimed in-service injury. The
record shows that the veteran suffered an injury to her foot
in service in July 1979 after dropping a tire on it. From
the medical evidence of record, it is unclear whether the
veteran currently suffers from chronic residuals of the foot
injury, and if so, whether she has a knee disability that is
proximately due to or the result of such an injury.
The RO should request a VA medical opinion from Dr. K.M. for
the purpose of determining wether the veteran currently
suffers from chronic residuals of the in-service injury to
the left foot, and if so, whether such residuals have caused
a left knee disability.
Accordingly, the case is REMANDED for the following action:
1. Obtain a medical opinion from Dr. K.M.
for the purpose of determining wether the
veteran currently suffers from chronic
residuals of the in-service injury to the
left foot. If Dr. K.M. is unavailable,
the RO should obtain the opinion from
another physician.
2. If the reviewing physician determines
that the veteran does suffer from chronic
residuals of the in-service injury to the
left foot, the reviewing physician should
render an opinion as to whether a left
knee disability is proximately due to or
the result of such chronic residuals.
3. Thereafter, the veteran's claims of
entitlement to service connection for a
left foot condition and etitlement to
service connection for a left leg (knee)
condition, as secondary to a left foot
condition, should be readjudicated. If
any benefit sought on appeal remains
denied, the veteran and his representative
should be provided with a supplemental
statement of the case that contains notice
of all relevant actions taken, including a
summary of the evidence and applicable law
and regulations considered pertinent to
the issues. An appropriate period of time
should be allowed for response by the
veteran and his representative.
Thereafter, the case should be returned to
the Board for further appellate
consideration, if in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs